27 November 2009 Executive Summary 4 Recommendations 11 Part 1: preliminary 18 1 terms of reference 18



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Recommendations

PART 2 (PROCEDURES)

Recommendation 2.1

That whatever steps are taken in relation to the future of the Family Court of Australia and the Federal Magistrates Court, the Government should ensure that the federal court or courts administering family law have judicial officers with an understanding of family law and a desire to work in that field, and procedures and resources specifically adapted to the requirements of family law, and particularly to the requirements of cases involving issues of family violence.

Recommendation 2.2

That the family law courts conduct a thorough review of their procedures and practices in parenting cases, especially those involving issues of family violence, and that the Government provide the necessary resources to support such a review.



Recommendation 2.3

That the Government consider amending s 60K so that it provides that in each parenting case the court must conduct a risk identification and assessment, rather than providing for the filing of a document that will require the courts to take particular actions.



Recommendation 2.4

That the Government consider the most appropriate ways of conducting such a risk identification and assessment, having regard to the resources available to the courts, and to the possibility of arranging for the assessment of risk to be conducted in part or whole by an external agency.



Recommendation 2.5

That the Government consider amending provisions of the Act relating to the confidentiality of information held by agencies outside the court, including dispute resolution agencies, so that information relevant to the assessment of the risks from violence or other causes could be more readily available to the courts.


Recommendation 2.6

That the Government consider providing the family courts with the additional resources necessary to ensure that adequate attention can be given to children’s cases in interim proceedings, especially cases involving allegations of family violence.

PART 3 (LEGISLATION)


Recommendation 3.1

That if recommendations 3.3 and 3.4 are adopted, section 63DA be replaced by a simpler provision, in substance directing advisers to have regard to the principles stated in the Act about the best interests of children; and if recommendations 3.3 and 3.4 are not adopted, s 63DA be amended to emphasise the need to ensure the safety of children and family members.



Recommendation 3.2

That s 117AB be repealed, and consideration be given to amending s 117 to make specific reference to the giving of knowingly false evidence, for example by inserting a new paragraph in subsection (2A) to the following effect: ‘Whether a party has knowingly given false evidence in the proceedings’.



Recommendation 3.3

That the Government give consideration to retaining the present provisions relating to parental responsibility (ss 61B, 61C, and 61DA), but amending the Act so that the guidelines for determining arrangements for the care of children (s 60CC) are independent of the provisions dealing with parental responsibility, and amending s 61DA so that it creates a presumption in favour of each parent having “parental responsibility”.


Recommendation 3.4

That the Government give consideration to amending s 60CC to provide, in substance, as follows:

(1) In considering what parenting orders to make, the court must not assume that any particular parenting arrangement is more likely than others to be in the child’s best interests, but should seek to identify the arrangements that are most likely to advance the child’s best interests in the circumstances of each case.

(2) In considering what parenting orders to make, the court must take into account the following matters, so far as they are relevant:

(a) any views expressed by the child concerning the child’s relationship with each parent and with other persons, and about any other matters that are important to the child;

(b) the nature of the relationship of the child with each of the child’s parents, and with other persons (including any grandparent or other relative of the child);

(c) the benefit the child has received, and is likely to receive, from a meaningful relationship with both of the child’s parents;

(d) the capacity and willingness of each parent or other relevant person to provide for the child’s safety, welfare and well-being, and the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent;

(e) any likely advantages to the child if each parent regularly spends time with the child on weekdays as well as weekends and holidays, and is involved in the child’s daily routine and occasions and events that are of particular significance to the child;

(f) the likely effect of any changes in the child’s circumstances, including any separation from either parent or any other child or adult with whom the child has been living;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

(i) any other fact or circumstance that the court thinks is relevant.

(3) In determining the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (paragraph (d)), the court must consider, in particular, the extent to which each of the child’s parents:

(a) has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the child; and to spend time and communicate with the child;

(b) has facilitated, or failed to facilitate, the other parent in making decisions about major long term issues in relation to the child, and spending time and communicating with the child; and

(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4) If the child is an Aboriginal child or a Torres Strait Islander child, the court must also take into account the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share it), and the likely impact any proposed parenting order under this Part will have on that right.

For the purpose of this subsection, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture;

(b) to have the support, opportunity and encouragement necessary to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(c) to develop a positive appreciation of that culture.


Recommendation 3.5

That if Recommendation 3.4 is not adopted, s 60CC(3)(c) be amended to read:

(c) the capacity and willingness of each parent to provide for the developmental needs of the child in the circumstances of each case, taking into account, among other things, children’s need for safety and the benefits of a close and continuing relationship with both parents.

Recommendation 3.6

That if Recommendation 3.4 is not adopted, the Government strengthen the provisions of the Act relating to family violence, including more detail about the nature and consequences of family violence, and that it consider in this connection adapting some of the provisions of Victorian or other state and territory legislation relating to family violence.



Recommendation 3.7

That the Government give consideration to revising s 60B(2).



Recommendation 3.8

That the Government undertake a technical revision of Part VII of the Family Law Act and related provisions, with a view to clarifying and simplifying the law.


PART 4 (OTHER MATTERS)


Recommendation 4.1

That the Government consider the desirability of providing additional funding in relation to the family law system, including funding that would support the work of contact centres, family dispute resolution agencies, legal aid, and family consultants in reducing the risk of family violence.


Recommendation 4.2

That the Government provide the necessary funding and other assistance so that the family law courts can review the adequacy of existing policies, facilities and arrangements for the safety of people in the courts, and address any deficiencies or difficulties revealed by that review.


Recommendation 4.3

That the Government, the family law courts, and other agencies and bodies forming part of the family law system consider ways in which those working in the family law system might be better educated in relation to issues of family violence.



Recommendation 4.4

That experience and knowledge of family violence be taken into account when considering the appointment of persons to significant positions in organisations forming part of the family law system.



Recommendation 4.5

That in the funding and administration of legal aid, careful consideration should be given to the serious implications of parties, and especially children, being legally unrepresented.



Recommendation 4.6

That organisations of lawyers and bodies responsible for legal education give due weight to the importance of including programs about issues relating to family violence, including its effects on children.



Recommendation 4.7

That consideration be given to amending s 118 to enable the court to entertain such an application of its own motion.



Recommendation 4.8

That the family law courts review the extent to which judicial officers in the Family Court of Australia and the Federal Magistrates Court use and benefit from the Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged, and consider any measures that might lead to the Principles becoming more influential.




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